I agree with the opinion of Presiding Justice Stevens.
The following observations are perhaps not entirely repetitious.
I. The amendments of 1971 and 1972 are valid because they are within the settlor’s reserved power to amend. The settlor reserved to himself a general power to revoke or amend excepting amendment "to reduce in any way the provision made for the lifetime of the Settlor’s wife, Katherine Rose Kane Walton, in Section A of article First of this agreement except with her consent in writing”. The restriction is only with respect to reducing provision made "for the lifetime of the Settlor’s wife” in "Section A of Article First.” Section A of article First provided for income to Katherine during her life after the settlor’s death.
The amendments of 1971 and 1972 did not amend section A. Neither did they amend "the provision made for the lifetime of the Settlor’s wife Katherine” (which is all contained in section A). Instead, the amendments essentially changed the *444provisions of section C for disposition of the principal of the trust after Katherine’s death.
Appellants argue that because these changed dispositions of principal resulted in a higher estate tax, the principal of the trusts was reduced and therefore the income could be expected to be less. But this is much too indirect a result to qualify as a reduction of "the provision made for the lifetime of the Settlor’s wife Katherine * * * in Section A of Article First.” It is difficult to accept that to protect his wife Katherine’s income during her life, the quoted restriction on the settlor’s power of amendment must prevent the settlor from providing for his son and grandchildren out of the remainder after Katherine’s death and compel him to leave that remainder to charities.
II. For the purposes of a surviving spouse’s right of election: (a) the capital value of a "testamentary substitute,” as defined in the statute, is included in the net estate subject to the spouse’s elective right (EPTL 5-1.1, subd [b], par [1]). (b) The "testamentary substitute” is a "testamentary provision” (EPTL 5-1.1, subd [c], par [1], cl [C] and is to be credited against or in satisfaction of the spouse’s right of election, with, however, the right to receive $10,000 absolutely (EPTL 5-1.1, subd [c], par [1], els [D] and [F]).
III. The trust is a "testamentary substitute” within the meaning of EPTL 5-1.1 (subd [b], par [1], cl [E]). Except for its date, it falls within the statutory definition: "(E) Any disposition of property made by the decedent after August thirty-first, nineteen hundred sixty-six, in trust or otherwise, to the extent that the decedent at the date of his death retained, either alone or in conjunction with another person, by the express provisions of the disposing instrument, a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof.”
The valid amendments of 1971 and 1972 make the trust the equivalent of an inter vivos disposition after August 31, 1966, the critical date in the statute. (Matter of McGrattan, 76 Misc 2d 873, 876 [1974]; Matter of Simeone, 141 Misc 737, 747 [1931].)
There is nothing retroactive about such an interpretation and holding. We are talking about a right to elect to take against a 1971 will. A 1966 statute could make any provision whatsoever as to such a right, as against a will thereafter executed; it could constitutionally say that there should be no *445right of election against a future will; it could constitutionally say that there should be such a right of election but that certain transfers—or even transfers antedating the statute— should be credited against that right of election.
Subdivision I of section C of article First of the 1963 amendment to the trust provides for a pour-over of $100,000 into the testator’s estate plus the payment of an amount equal to all estate, etc., taxes. In my view, this is not a provision for the reduction of the trust by invasion of the principal for another person or for the termination of the trust prior to the surviving spouse’s death by payment of the principal to another person, or a provision for applying less than substantially all of the net income from the trust for the benefit of the surviving spouse within the meaning of EPTL 5-1.1 (subd [c], par [1], cl [J]). (Such provisions would permit the surviving spouse to claim the principal rather than just the income of the trust.) But this case is in substance a provision that on the settlor’s death there shall be created a trust equal to essentially all of the settlor’s assets, less estate taxes (i.e., the net estate) less $100,000 and that the wife shall receive all the income from that trust for her life. That is a trust of more than the elective share—one third of the net estate. (EPTL 5-1.1, subd [c], par [1], cl [B].)
IV. The result we reach is by no means unjust. The trust contains about 94.6% (reduced to say 75% by the pour-over provision) of the combined assets of the trust and the probate estate. What the widow asked is to keep the benefits under the 75% and get an election out of the remaining 25%. The statute was intended to protect surviving spouses so that they would get at a minimum the income from one third of the principal of the estate for life. It was not intended to give a widow the income from 75% of the assets plus the principal of one third of the remaining 25%. Under the interpretation which we are adopting, the widow was entitled to the income from approximately 75% of the net estate.
Kupferman, Markewich and Lynch, JJ., concur with Stevens, P. J.; Silverman, J., concurs in an opinion.
Decree, Surrogate’s Court, New York County, entered on April 1, 1976, unanimously modified, on the law and on the facts and in the exercise of discretion, so as to reduce the award to the guardian ad litem to $5,000 and, as so modified, affirmed, without costs and without disbursements.